Citation Nr: 1017887
Decision Date: 05/13/10 Archive Date: 05/26/10
DOCKET NO. 04-14 830 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to an increased rating for chronic airway
obstruction, with pulmonary lesions and pleural thickening,
currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
James A. DeFrank, Counsel
INTRODUCTION
The Veteran retired from the United States Army after more
than 20 years of active service.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from the Columbia, South Carolina, Department of
Veterans Affairs (VA) Regional Office (RO).
In December 2006, the Board remanded the issue for additional
development.
In July 2008, the Board again remanded the issue for
additional development.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The issue of entitlement to an increased rating for chronic
airway obstruction, with pulmonary lesions and pleural
thickening, was remanded by the Board in December 2006 so
that the Veteran could have pulmonary testing completed, to
include all applicable tests. The December 2006 remand
specifically stated that the Diffusion Capacity of the Lung
for Carbon Monoxide by the Single Breath Method (DLCO) test
should be completed or the examiner should set forth the
reasons why it was not.
The Veteran underwent a VA examination in January 2007.
However, DLCO testing was not performed and no explanation
was given by the examiner why DLCO testing could not be
completed.
This issue was again remanded by the Board in July 2008 so
that, in part, the Veteran could have pulmonary testing
completed, to include all applicable tests. Again, the July
2008 remand specifically stated that the DLCO test should be
completed or the examiner should set forth the reasons why it
was not.
The Veteran underwent a VA examination in October 2009.
However, DLCO testing was again not performed and no
explanation was given by the examiner why DLCO testing was
not completed.
A remand by the Board "confers on the veteran or other
claimant, as a matter of law, the right to compliance with
the remand orders." Stegall v. West, 11 Vet. App. 268
(1998). As such, clarification as set out herein is needed.
The Board would like to again make clear that DLCO test
results could result in a higher rating for the Veteran's
disability. According to Diagnostic Codes 6603 and 6604, a
60 percent disability rating could be warranted with evidence
of DLCO of 40 to 55 percent predicted. 38 C.F.R. § 4.97,
Diagnostic Codes 6603, 6604 (2009). If a DLCO test is not of
record, evaluation can be made based on alternative criteria
as long as the examiner states why the test would not be
useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2)
(2009). Accordingly, the AMC/RO should arrange for the
Veteran to have pulmonary testing completed, to include all
applicable tests including the DLCO test. If the DLCO test
is not indicated, the examiner should set forth the reason
why.
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be requested to
provide the names, addresses and
approximate dates of treatment of all
medical care providers, VA and non-VA,
who have treated him for the disability
on appeal. After the Veteran has signed
the appropriate releases, those records
should be obtained and associated with
the claims folder. Appropriate efforts
must be made to obtain all available VA
treatment records. All attempts to
procure records should be documented in
the file. If the AMC/RO cannot obtain
records identified by the Veteran, a
notation to that effect should be
inserted in the file. The Veteran is to
be notified of unsuccessful efforts in
this regard, in order to allow him the
opportunity to obtain and submit those
records for VA review.
2. The AMC/RO should arrange for the
Veteran to have pulmonary testing
completed, to include all applicable
tests. The claims folder should be made
available to the examiner, who should be
advised as to the purpose of the
examination. The DLCO test should be
completed or the examiner should set
forth the reason why the test would not
be useful or valid in this particular
case. All pertinent findings should be
reported in detail.
3. Then re-adjudicate the claim. If the
determination remains unfavorable to the
Veteran, issue a supplemental statement
of the case before returning the case to
the Board, if otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim
must be afforded expeditious treatment. The law requires
that all claims that are remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See 38 U.S.C.A. §§
5109B, 7112 (West Supp. 2009).
_________________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).